N4069 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1370 OF 2006

BETWEEN:

METALS REFINING OPERATIONS LIMITED
Plaintiff/Cross Defendant

AND:

GROUP 4 SECURICOR INTERNATIONAL PTY LTD
First Defendant/First Cross Claimant

AND:

STEVEN POHA
Second Defendant

AND:

LORNA KEKESENG
Third Defendant

AND:

JEFFERY HOHEG & ALOIS YAKAPU
Fourth Defendants

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:

AGR MATTHEY
Second Cross Claimant

Waigani: Hartshorn J.
2009: 27th August,
2010: 10th March

Application for Judgment on Admissions– Order 9 Rule 30(1) National Court Rules 

Facts:

Metals Refining Operations Limited (MROL)commenced this proceeding seeking amongst others, to recover a gold bar that was taken from MROL's premises pursuant to a search warrant. MROL states that it bought the gold bar from Steven Poha and Lorna Kekeseng. Group 4 Securicor International Pty Ltd (G4SI) and AGR Matthey (AGRM) however, allege that the gold bar belongs to AGRM, that it was stolen and then sold to MROL, and that MROL does not have good title to the gold bar. G4SI and AGRM by cross claim, seek declaratory relief to the effect that G4SI is entitled to possession of the gold bar and that the Police release the gold bar to G4SI when investigations into its theft have been completed. MROL now seeks to strike out the equitable relief sought in the cross claim, judgment against G4SI and AGRM, and ancillary orders, as G4SI and AGRM are not properly certified or registered to carry on business in Papua New Guinea. G4SI and AGRM oppose this application advancing four grounds.

Held:

1. An applicant must give reasons why it seeks relief and not merely make an application on the assumption that the court will grant the relief sought. The court is unable to determine how to exercise its discretion if it is not given any or adequate submissions as to why and how its discretion should be exercised.

2. The evidence does not contain an admission express or implied and cannot be said to be an admission by G4SI or AGRM "whether by his pleading or otherwise." 

3. The orders sought in the notice of motion of the plaintiff/cross defendant are refused.

Cases cited:

Papua New Guinea Cases:

Simon Kai & Ors v. State (1992) N1079 

Overseas Cases:

Ellis v. Allen (1914) 1 Ch 904 

Counsel:

Mr. H.B. Maladina, for the Plaintiff/Cross Defendant 
Mr. M. Muga, for the First Defendant and Cross Claimants

10th March, 2010

1. HARTSHORN J. Metals Refining Operations Limited (MROL) alleges that it owns a gold bar that it bought from Steven Poha and Lorna Kekeseng. The gold bar was taken from MROL's premises pursuant to a search warrant. MROL commenced this proceeding seeking amongst others, to recover the gold bar. 

2. Group 4 Securicor International Pty Ltd (G4SI) and AGR Matthey (AGRM) allege that the gold bar belongs to AGRM, that it was stolen and then sold to MROL, and that MROL does not have good title to the gold bar.

3. G4SI alleges that it is entitled to possession of the gold bar as it has indemnified AGRM for its loss. G4SI and AGRM by cross claim, seek declaratory relief to the effect that G4SI is entitled to possession of the gold bar and that the Police release the gold bar to G4SI when investigations into its theft have been completed.

4. MROL now seeks to strike out the equitable relief sought in the cross claim, judgment against G4SI and AGRM, and ancillary orders, as G4SI and AGRM are not properly certified or registered to carry on business in Papua New Guinea.

5. G4SI and AGRM oppose the application as:

a) the application is incompetent as it does not provide a concise reference to the court's jurisdiction to grant the orders sought,

b) G4SI is entitled to defend proceedings in which it has been named as a defendant by MROL and to pursue its cross claim in respect of the same subject matter, with AGRM against MROL,

c) there is a serious conflict on questions of fact and law such that it is not appropriate that summary judgment be granted by interlocutory application,

d) they are not deemed to be carrying on business in Papua New Guinea by virtue of being named as parties in proceedings.

Whether application incompetent

6. The applications in paragraphs 2 and 3 of the notice of motion that the equitable relief be struck out, do not contain any reference to the legislative provision that gives the court the power to do so. This is contrary to Order 4 Rule 49(8) National Court Rules. The relief sought should be refused as a consequence. I will consider other aspects of the motion before deciding whether paragraphs 2 and 3 of the motion should be struck out.

Order 8 Rule 14 – dispensation

7. MROL applies in paragraph 1 of its notice of motion for the requirements of Order 8 Rule 14 National Court Rules to be dispensed with. Order 8 Rule 14 requires amongst others, that in a defence or subsequent pleading, the party pleading shall specifically plead any matter which he alleges makes any claim not maintainable, for example illegality.

8. It is presumed that dispensation is required as illegality is not pleaded in MROL's defence to the cross claim and illegality is the ground upon which it now relies to strike out the relief in the cross claim. MROL did not make any submissions as to why dispensation is sought under Order 1 Rule 7, as distinct from seeking to amend its defence to the cross claim, so that illegality is specifically pleaded in accordance with Order 8 Rule 14.

9. An applicant must give reasons why it seeks relief and not merely make an application on the assumption that the court will grant the relief sought. The court is unable to determine how to exercise its discretion if it is not given any or adequate submissions as to why and how its discretion should be exercised.

Admissions

10. MROL submits that there is an admission of fact by G4SI and AGRM in their pleadings that they have been carrying on business in Papua New Guinea. MROL then concedes in its submissions, that on the admissions per se, judgment cannot be entered against G4SI and AGRM and cites a decision of Woods J. in Simon Kai & Ors v. State (1992) N1079. That case involved a failure of a defendant to supply an answer to a notice to admit facts. It is common ground that a notice to admit facts has not been served in this instance and I do not find Simon Kai's case particularly helpful as a consequence. In any event, the concession has been made that judgment cannot be entered on the alleged admissions alone. 

11. MROL submits that the court should consider an affidavit of Mr. Ben Memafu in which Mr. Memafu deposes as to the status of G4SI and AGRM following searches conducted by him. Counsel for MROL submitted that the word "otherwise" in Order 9 Rule 30(1) National Court Rules permitted this court to consider Mr. Memafu's affidavit and cited the case of Ellis v. Allen (1914) 1 Ch 904.

12. In Ellis, the Court took account of an admission as to the conduct of the defendant contained in a letter written by the defendant's solicitor to the plaintiff's solicitor. In this instance however, the affidavit of Mr. Memafu is sworn and filed on behalf of MROL the plaintiff, and not on behalf of G4SI and AGRM.

13. In addition, the content of the affidavit does not contain any admission express or implied, by G4SI or AGRM. It cannot be said that the content of the affidavit is in any way an admission by G4SI or AGRM "whether by his pleading or otherwise".

14. In the circumstances, I find the Ellis decision of no assistance to MROL's argument that Mr. Memafu's affidavit in some way raises the alleged admissions made as to the conduct of G4SI and AGRM, to a point where this court can safely and properly exercise its discretion and enter judgment.

15. As it is conceded that the alleged admissions cannot be relied upon alone for judgment to be entered and as I am of the view that the subject documentation cannot be construed in the manner submitted by MROL, the application for the equitable relief sought in the cross claim to be struck out, must fail. Given this finding, it is not necessary to consider the other submissions of counsel.

Orders

16. The orders sought in the notice of motion of the plaintiff/cross defendant dated and filed 6th July 2009 are refused.

17. The costs of and incidental to the motion are to be paid by the plaintiff/cross defendant to the first defendant/first cross claimant and second cross claimant.

_____________________________________________________________
Young & Williams Lawyers: Lawyers for the Plaintiff/Cross Defendant 
Allens Arthur Robinson: Lawyers for the First Defendant and Cross Claimants